2006 New York Code - Trust Funds.

 
  § 1507. Trust funds.
    (a)  Maintenance and preservation; permanent maintenance fund; current
  maintenance fund. Subject to  rules  and  regulations  of  the  cemetery
  board:  (1)  Every  cemetery corporation shall maintain and preserve the
  cemetery, including all lots, plots and  parts  thereof.  For  the  sole
  purpose of such maintenance and preservation, every cemetery corporation
  shall establish and maintain (A) a permanent maintenance fund, and (B) a
  current  maintenance fund. At the time of making the sale of a lot, plot
  or part thereof, the cemetery corporation shall deposit  not  less  than
  ten  per  centum  of  the  gross proceeds of the sale into the permanent
  maintenance fund. An additional fifteen per centum of the gross proceeds
  of the sale shall be deposited  in  the  current  maintenance  fund.  In
  addition to the foregoing, at the time the cemetery corporation receives
  payment  for  the performance of an interment or inurnment, the cemetery
  corporation shall collect and deposit  into  the  permanent  maintenance
  fund  the sum of thirty-five dollars. (2) The permanent maintenance fund
  is hereby declared to be and shall be held by the corporation as a trust
  fund, for the  purpose  of  maintaining  and  preserving  the  cemetery,
  including  all  lots,  crypts,  niches,  plots,  and  parts thereof. The
  principal of such fund shall be  invested  in  such  securities  as  are
  permitted  for  the  investment  of trust funds by section 11-2.3 of the
  estates, powers and trusts law. The income in the form of  interest  and
  ordinary  dividends  therefrom  shall be used solely for the maintenance
  and preservation of the cemetery grounds.  In  addition,  the  governing
  board  of the corporation may appropriate for expenditure solely for the
  maintenance and preservation of the cemetery grounds a  portion  of  the
  net  appreciation,  realized (with respect to all assets) and unrealized
  (with respect only to readily marketable assets),  in  the  fair  market
  value  of  the principal of the trust in excess of its adjusted historic
  dollar value, as defined in this subparagraph, as is prudent  under  the
  standard  established by section seven hundred seventeen of this chapter
  (duty of directors and officers) and as limited by  the  maximum  annual
  appropriation  defined  in  this  subparagraph. For the purposes of this
  subparagraph, the adjusted historic dollar value of the trust  principal
  shall  be  the  market  value of the principal three full calendar years
  prior to the effective date of the amendments made to this subparagraph,
  plus all subsequent additions thereto, minus  all  allowable  deductions
  therefrom,  adjusted  by  the  rate  of  inflation  as  measured  by the
  applicable consumer price index. The maximum annual appropriation  shall
  be  sixty percent of the average of the net appreciation in the fund for
  the immediately preceding three years, but only to the  extent  that  it
  exceeds  the adjusted historical dollar value of the fund in the current
  year. Cemetery corporations shall keep complete records of the  adjusted
  historic  dollar  value  of the permanent maintenance fund. In the event
  that a cemetery corporation seeks to appropriate any percentage  of  its
  net  appreciation  in  its permanent maintenance fund in accordance with
  this subparagraph, the cemetery corporation shall send a notice of  such
  proposed  appropriation by certified mail to the cemetery board, setting
  forth the amount of funds to be appropriated for  such  expenditure  and
  its  effect  on the permanent maintenance fund, and certifying that such
  amount does not exceed the maximum annual appropriation defined in  this
  subparagraph.  Such  proposed appropriation shall become effective sixty
  days after receipt of such notice, unless the cemetery board within such
  sixty-day period  notifies  the  cemetery  corporation  that  the  board
  objects  to  the  proposed  appropriation. Notwithstanding the foregoing
  provisions  of  this  subparagraph,  all  principal  of  the   permanent
  maintenance  fund  shall remain inviolate, except that, upon application
  to the supreme court in a district  where  a  portion  of  the  cemetery
  grounds is located, the court may make an order permitting the principal
  or  a part thereof to be used for the purpose of current maintenance and
  preservation of the cemetery or otherwise. Such application may be  made
  by the cemetery board on notice to the corporation or by the corporation
  on  notice  to  the  cemetery  board.  Unless  the  cemetery can clearly
  demonstrate that it lacks sufficient future revenue to  make  repayment,
  any  such  allowance from the permanent maintenance fund shall be in the
  form of a loan, and the court shall determine the method  for  repayment
  of  such a loan by the cemetery to the fund. Any loan from the permanent
  maintenance fund shall be ignored  for  the  purpose  of  computing  the
  adjusted  dollar  value  of  the  fund.  In  the  event  that  the court
  determines that an  outright  grant  of  principal  from  the  permanent
  maintenance  fund  is  necessary,  the  amount  of  such  grant shall be
  deducted from the adjusted historic dollar value of the trust  principal
  for the purposes of this subparagraph.
    (b)  Perpetual care of lots. (1) Upon the application of a prospective
  purchaser of any lot, plot or part  thereof  and  upon  payment  of  the
  purchase  price  and  the  amount  fixed  as a reasonable charge for the
  perpetual care  of  any  lot,  plot  or  part  thereof,  every  cemetery
  corporation  shall  include  with  the  deed  of conveyance an agreement
  perpetually to care for such lot, plot, or part thereof, to  the  extent
  that the income derived by the corporation from such amount will permit.
  (2)  Such  corporation  also, upon the application of an owner or of the
  executor or administrator of a deceased owner of any lot  and  upon  the
  payment  of  the  amount  fixed as a reasonable charge for the perpetual
  care of such lot, shall, and upon the application of  any  other  person
  and  the  payment  of  such amount, may enter into a like agreement with
  him. Such agreement shall be executed and may be recorded  in  the  same
  manner  as a deed. (3) Any corporation organized under or subject to the
  provisions of this section may enter into an agreement in  writing  with
  any  executor  or  executors, trustee or trustees, under a last will and
  testament to whom there  has  heretofore  been,  or  may  hereafter  be,
  bequeathed a sum for the perpetual care of any lot, plot or part thereof
  in  any  such  cemetery or with any administrator or administrators with
  the will annexed under any such will perpetually to care for  such  lot,
  plot or part thereof under the provisions of the terms of such last will
  and  testament,  and  subject  in  all  cases  to  the  approval  of the
  surrogate's court having  jurisdiction  over  such  trust  estate.  Such
  approval may be evidenced by the written endorsement of the surrogate on
  a  duplicate  original of such agreement filed in the surrogate's court.
  In case the surrogate shall approve such agreement  any  such  executor,
  trustee  or administrator with the will annexed thereupon shall pay over
  to  the  treasurer  of  such  perpetual  care  fund  of  such   cemetery
  corporation any moneys remaining or being in his hands belonging to such
  trust,  and  upon  making  such  payment and accounting therefore to the
  surrogate's court may be discharged from said trust  as  such  executor,
  trustee or administrator with the will annexed.
    (c)  Perpetual  care  fund.  (1)  Every cemetery corporation and every
  religious corporation having charge and  control  of  a  cemetery  which
  heretofore  has  been  or which hereafter may be used for burials, shall
  keep separate and apart from its other funds, all  moneys  and  property
  received  by  it,  whether  by  contract, in trust or otherwise, for the
  perpetual care and maintenance of any lot, plot or part thereof  in  its
  cemetery,  and  all  such  moneys  or  property  so received by any such
  corporation are hereby  declared  to  be,  and  shall  be  held  by  the
  corporation  as trust funds. Any moneys and property so received, unless
  otherwise provided in the instrument under which such moneys or property
  were received, shall be kept in a separate  fund  to  be  known  as  the
  perpetual care fund.
    (2)  The  principal  of such funds, whether kept in the perpetual care
  fund or otherwise, and unless already so invested when  received,  shall
  be  invested  within  a  reasonable time after receipt thereof, and kept
  invested, in such securities as are  permitted  for  the  investment  of
  trust  funds  by  sections  11-2.2 and 11-2.3 of the estates, powers and
  trusts law. The income arising therefrom shall be used  solely  for  the
  perpetual  care and maintenance of the lot or plots or parts thereof for
  which such income has been provided.
    (3) The corporation may, for the purpose of investing and  reinvesting
  such  funds,  add  the  same  to  any  similar  trust  fund or funds and
  apportion shares or interest  to  each  trust  fund,  showing  upon  its
  records at all times every share or interest.
    (4)  The  corporation  may accept in trust for the perpetual care of a
  lot, plot or part thereof in its cemetery, property  not  made  eligible
  for the investment of trust funds under the foregoing provisions of this
  subdivision  and may retain such property in the form in which received,
  separate and apart from the perpetual care fund, if directed so to do by
  the instrument under which such property is received, so  long  as  such
  property remains in the form in which it was received; but whenever such
  property  is sold or otherwise disposed of, the proceeds of such sale or
  other disposition shall be invested in the manner heretofore provided in
  this subdivision for the investment of  trust  funds.  The  exchange  of
  stock  or evidences of indebtedness issued by a corporation for stock or
  evidences of  indebtedness  of  the  same  corporation,  or  for  stock,
  evidences  of  indebtedness,  warrants or script received as a result of
  merger, consolidation or reorganization  of  such  corporation,  or  the
  receipt  of  additional  stock  or  evidences  of  indebtedness  of such
  corporation, as a distribution by such corporation, shall not be  deemed
  to  be  a  disposition of the property originally received in trust, and
  such exchanged or additional property may be retained in place and stead
  of the property originally received, and under the same conditions.  The
  corporation  shall keep accurate accounts of all funds for the perpetual
  care and maintenance of cemetery lots, plots or parts thereof,  separate
  and  apart from its other funds. A copy of the record pertaining to each
  such perpetual care fund shall be at all times available at  the  office
  of  the corporation during usual business hours, for inspection and copy
  by any owner of an endowed lot or his representative.
    (d) Perpetual care fund; allocation of income and  cost  of  care  and
  maintenance.  On  or  before the fifteenth day of March in each calendar
  year the officers of every cemetery corporation shall fix and  determine
  that  portion  of  the  income on the investment of the principal of the
  perpetual care fund during  the  calendar  or  fiscal  year  immediately
  preceding,  to  be  apportioned to each separate lot or part thereof for
  which a perpetual care agreement has been made.  The  cost  during  such
  previous calendar or fiscal year of the care of each lot or part thereof
  shall  be allocated and charged against the income so apportioned to it.
  Any excess of the income so apportioned over  and  above  the  allocated
  cost  of  the  care and maintenance of such lot or part thereof shall be
  credited to such lot or part thereof, to be used in any future years  to
  make  up  the  deficiency  if the income apportioned to such lot or part
  thereof should, in any year  since  September  first,  nineteen  hundred
  forty-nine,  or in any future year, fall, or have fallen, below the cost
  of care thereof.
    (e) Designation of fiduciary corporation by directors or  trustees  of
  cemetery  corporation to act as custodians of funds. Notwithstanding the
  provisions of any other law,  the  directors  or  trustees  of  cemetery
  corporations  are hereby authorized to designate a bank or trust company
  to act as custodian and trustee of any or all of the respective funds of
  such cemetery corporation received by it for the perpetual care of  lots
  in  the  cemetery  thereof pursuant to subdivision (b), of this section,
  the permanent maintenance of such cemetery pursuant to  subdivision  (a)
  of this section, and for special purposes pursuant to subdivision (f) of
  this section. Such corporate trustee shall be designated by a resolution
  duly  adopted  by  the  board of directors or trustees and approved by a
  justice of the supreme court of  the  judicial  district  in  which  the
  cemetery  of  said corporation is located; and the directors or trustees
  of such cemetery corporation may, with the approval of  the  justice  of
  the  supreme  court,  revoke such trust, and either take over such trust
  fund or name another trustee to handle the same, but if not so  revoked,
  such  trust  shall be perpetual. Any bank or trust company accepting any
  such cemetery fund shall keep the same separate from  all  other  funds,
  except  that  it  may,  irrespective  of any provision contained in this
  article invest the same in a legal common trust fund or in shares  of  a
  mutual  trust  investment  company  organized under the banking law, and
  shall pay over the net income  to  the  directors  or  trustees  of  the
  cemetery  corporation  by  whom  it shall be expended and applied to the
  purpose for which such trust fund was paid to the cemetery  corporations
  and  accounted for in accordance with such subdivisions (a), (b) and (f)
  of this section.
    (e-1) Monument maintenance  fund.  (1)  A  cemetery  corporation  may,
  subject  to the approval of the cemetery board, establish and maintain a
  monument maintenance fund. Such a fund is  hereby  declared  to  be  and
  shall  be  held  by  the  cemetery  corporation as a trust fund, for the
  purpose of providing notice if such monuments are damaged or defaced  by
  an  act  of  vandalism and for the restoration of such monuments. Two or
  more cemetery corporations may establish a  joint  monument  maintenance
  fund.
    (2)  The  principal  of  the  fund  shall  be  invested  in securities
  permitted for the investment of  trust  funds  by  sections  11-2.2  and
  11-2.3 of the estates, powers and trusts law. The principal of such fund
  shall  remain  inviolate,  except  that  upon application to the supreme
  court in a district where a portion of the cemetery grounds is  located,
  the  court  may make an order permitting the principal or a part thereof
  to be used for the purpose of restoring monuments damaged or defaced  by
  an  act  of  vandalism. The income arising from such investment shall be
  used solely for  the  costs  and  expenses  resulting  from  an  act  of
  vandalism against monuments in such cemetery.
    (3)  The fund shall be financed by a charge levied at the time of each
  interment at a rate established by each cemetery creating such  a  fund,
  subject  to  cemetery board approval pursuant to section fifteen hundred
  nine of this article. Such a charge shall be levied in addition  to  the
  approved  rates for interment. The fund may also accept gifts, donations
  and bequests.
    (4) Each cemetery creating such a  fund  shall  promulgate  rules  and
  regulations  to  administer the fund, subject to cemetery board approval
  pursuant to section fifteen hundred nine of  this  article.  Such  rules
  shall  include  the conditions under which the income from such fund may
  be properly expended.
    (5) The cemetery corporation  shall  keep  accurate  accounts  of  all
  moneys for the fund, separate and apart from its other funds.
    (f)  Acquisition  of property for special purposes and in trust. (1) A
  cemetery corporation may acquire, otherwise than by  condemnation,  real
  or   personal  property,  absolutely  or  in  trust,  in  perpetuity  or
  otherwise, and shall use the same or the income therefrom  in  pursuance
  of  the  terms  of  the  instrument  by  which  it was acquired, for the
  following purposes only: (i) The improvement or embellishment,  but  not
  the enlargement, of its cemetery; (ii) The construction, preservation or
  replacement  of  any  building, structure, fence, wall, or walk therein;
  (iii) The erection, renewal  or  preservation  of  any  tomb,  monument,
  stone,  fence, wall, railing or other erection or structure on or around
  its  cemetery  or  any  lot  or  plot  therein;  (iv)  The  planting  or
  cultivation  of  trees, grass, shrubs, flowers or plants in or about its
  cemetery or any lot or plot therein; (v)  The  construction,  operation,
  maintenance,  repair  and  replacement  of a crematory or columbarium or
  both in its cemetery; (vi) The care, keeping in order and  embellishment
  of  any  lot,  plot  or  part  thereof or the structures thereon, in its
  cemetery, as prescribed in the instrument transferring such property  to
  the  cemetery corporation, or by the person or persons from time to time
  having possession, care and control of such lot, plot or  part  thereof,
  as the case may be.
    (2)  All  moneys  and  property  received by a cemetery corporation in
  trust  under  this  subdivision,  unless  otherwise  provided   in   the
  instrument  under which such moneys or property were received and unless
  already so invested when received, shall be invested within a reasonable
  time after the receipt thereof, and kept invested in such securities  as
  are  permitted  for the investment of trust funds by sections 11-2.2 and
  11-2.3 of the estates, powers and trusts law. The corporation  may,  for
  the purpose of investing and reinvesting such funds, add the same to any
  similar  trust  fund  or funds and apportion shares or interests to each
  trust fund, showing upon  its  records  at  all  times  every  share  or
  interest. The cemetery corporation shall maintain a record for each such
  trust fund. Such record shall be at all times available at the office of
  the  corporation during usual business hours, for inspection and copy by
  any owner of an endowed lot or his representative.
    (g) Trust for the care  of  burial  ground.  A  cemetery  corporation,
  incorporated  under or by a general or special law, may receive tangible
  property, securities or funds in trust, and hold and invest the same and
  apply the principal or income thereof, in accordance with the  terms  of
  the  trust,  for  the  purpose  of  repairing, maintaining, improving or
  embellishing a burial ground, not constituting a part of the cemetery of
  such cemetery corporation, and located outside of a city  of  more  than
  one  million  inhabitants  and  within  ten miles of the cemetery of the
  corporation accepting such trust. The directors of such corporation,  or
  a  majority  of them and the treasurer, shall annually within sixty days
  after the close of each calendar or fiscal year, make,  sign  and  shall
  file  at  the office of the corporation a detailed accounting and report
  of such trust funds held under this subdivision and the use made of such
  funds or of the income thereof for  the  preceding  calendar  or  fiscal
  year,  which  shall  include  among other things, properly itemized, the
  securities in which the same is then invested, and any purchases,  sales
  or  other changes made therein during the period covered by such report.
  Such accounting and report shall be at all times available at the office
  of the corporation, during usual business hours, for inspection and copy
  by any lot owner or any contributor to such trust fund.
    (h)  Vandalism,  abandonment  and  monument  repair  or  removal.  (1)
  Cemeteries  incorporated  under  this article shall contribute to a fund
  created pursuant to section ninety-seven-r of the state finance law  for
  the  maintenance  of abandoned cemeteries, including the construction of
  cemetery  fences,  placement  of  cemetery  lights  and  replacement  of
  cemetery  doors  and  locks,  for the restoration of property damaged by
  acts of vandalism, and for the repair or removal of monuments  or  other
  markers  not  owned  by  the  cemetery corporation that have fallen into
  disrepair or dilapidation so as to create a  dangerous  condition.  Such
  fund  shall  be  administered  by  a  board of trustees comprised of the
  secretary of state, the attorney general and the commissioner of health,
  or their designees, who shall serve without additional compensation.
    (2)  The  fund  shall  be  financed  by  contributions by the cemetery
  corporations of not more than five  dollars  ($5.00)  per  interment  or
  cremation  in  a  manner to be determined by the New York state cemetery
  board. No contributions shall be collected upon  the  interment  of  the
  cremains  of  a  deceased person where a contribution was collected upon
  cremations.
    (3) The  moneys  of  the  fund  shall  be  expended  equally  for  the
  maintenance  of  abandoned  cemeteries previously owned by a corporation
  incorporated pursuant to this chapter or the membership corporations law
  and the repair of cemetery vandalism damage and the repair or removal of
  monuments or other  markers  not  owned  by  the  cemetery  corporation,
  provided,   however,   that   the  cemetery  board  may  determine  that
  circumstances necessitate an unequal distribution due to specific  needs
  and may provide for such distribution. For purposes of this section, the
  maintenance  of  abandoned  cemeteries  may  include the construction of
  cemetery  fences,  placement  of  cemetery  lights  and  replacement  of
  cemetery doors and locks.
    (4)  Authorization  for  payments  by  the  fund for maintenance of an
  abandoned cemetery shall be made by the secretary  of  state  only  upon
  approval  by  the cemetery board of an application by a municipality for
  fair and reasonable expenses required to be made by the municipality for
  maintenance of  an  abandoned  cemetery;  provided,  however,  that  the
  cemetery  board  shall  not  approve  any  such  application  unless the
  municipality acknowledges that the responsibility  for  restoration  and
  future  care,  preservation  and  maintenance  of such cemetery has been
  assumed by the municipality. For the purposes  of  this  paragraph  such
  cemetery shall always be deemed an abandoned cemetery.
    (5) Authorization for payments by the fund for the repair of vandalism
  damage  shall  be made by the secretary of state only on approval by the
  New York state cemetery board which shall determine:
    (i) that an act of vandalism to the extent described by  the  cemetery
  corporation did take place;
    (ii)  that either a written report of the vandalism was filed with the
  local police or  sheriff's  department,  or,  that  the  cemetery,  upon
  consent  of  the  division,  made a determination not to file the report
  because the publicity generated by filing the report would have  adverse
  consequences for the cemetery;
    (iii) that the cost of repairs is fair and reasonable; and
    (iv)  that  the  cemetery  corporation has been unable to obtain funds
  from the lot  owner,  his  spouse,  devisees  or  descendants  within  a
  reasonable  period  of time nor are there adequate funds in the cemetery
  corporations  monument  maintenance  fund,  if  such  a  fund  has  been
  established by the cemetery.
    (6)  Authorization  for payments by the fund for the repair or removal
  of monuments or other markers not  owned  by  the  cemetery  corporation
  shall be made by the secretary of state only on approval by the New York
  state cemetery board on application by the cemetery corporation showing:
    (i)  that  the  monuments  or  markers  are  so badly out of repair or
  dilapidated as to create a dangerous condition;
    (ii) that the cost of remedying the condition is fair and reasonable;
    (iii) that the cemetery corporation has given not less than sixty days
  notice to the last known owner to repair or remove the monument or other
  marker and the said owner has failed to do so within the time prescribed
  in said notice.
    (7) The New York state cemetery board shall promulgate rules  defining
  standards  of  maintenance,  as well as what type of vandalism or out of
  repair or dilapidated monuments  or  other  markers  shall  qualify  for
  payment  of  repair  or removal by the fund and the method and amount of
  payment of contributions described in subparagraph two of this paragraph
  upon  the  recommendation  of the state cemetery board citizens advisory
  council created by section  fifteen  hundred  seven-a  of  this  article
  (State cemetery board citizens advisory council).
    (8) Nothing contained in this paragraph is to be construed as giving a
  cemetery  corporation  an  "insurable  interest"  in  monuments or other
  embellishments on a plot, lot or part thereof, nor is it meant to  imply
  that  the  cemetery  corporation  has  any  responsibility for repairing
  vandalism damage not covered by this fund, nor for repairing or removing
  out of repair or dilapidated monuments or other markers not owned by the
  cemetery corporation, nor shall it constitute the doing of an  insurance
  business.